GPSOLO July - August 2008

Growing Old with a Lesbian or Gay Partner

By Matthew R. Dubois

Aging couples come in many different types and with varied backgrounds, with different problems and joys based on rich lives of experience and wisdom. Being able to help them solve their problems, protect each other, or improve themselves in some way can make law practice worthwhile. The challenge of assisting lesbian and gay couples can be both rewarding and frustrating because there is such a divergence in social attitudes from place to place throughout the country and in legal standards in different practice areas of the law. However, some of the most committed aging couples are same-gender couples who have remained together despite substantial adversity in their lives, and helping these couples successfully protect themselves despite the challenge is a rewarding endeavor.

Many gay or lesbian couples will have done some family planning, even creating a basic estate plan. They may not have thought about growing old, however, or they may have done so only in the context of others in their lives, such as parents. How can you know what issues are important to protect the couple so they can grow old together successfully? Can legal planning address these issues? Attorneys working with the aging and elderly often find that there is a little social work mixed in with their legal counsel. This may be particularly true when advising lesbian or gay couples growing old together and navigating administrative and legal systems not designed for their benefit.

Federal Benefits for the Aging

A substantial portion of the safety net that exists for couples as they age comes from federal law and, more specifically, how federal law recognizes marriage. The passage of the Defense of Marriage Act (DOMA) in 1996 still acts like a straightjacket, limiting protections and benefits available to lesbian and gay elder couples. Marriage obtained in any number of states will not provide the federal recognition needed to include these couples, married or not, in the safety net of federal benefits for the aging. Lesbian and gay elder couples may be at risk because of the inability of providers governed by federal benefit programs to honor their relationships.

Social Security. Certain benefits are available through the Social Security Administration based solely on recognized familial ties, particularly for a spouse or even a divorced spouse. These include retirement, survivorship, disability, and a one-time death benefit of $225, none of which a same-gender couple can expect to access.

Lesbian and gay couples cannot draw on a partner’s work record as a recognized spouse may do in retirement or as a survivor. One partner of a couple may not have worked or may have a very small Social Security retirement pension, and the other a more significant one. A spouse is provided with the larger of the two spouses’ benefits at the time of that spouse’s death or the survivor’s own retirement, thus blunting the loss of income to the survivor’s living standard. In contrast, a lesbian or gay surviving partner who similarly did not work or is receiving a lesser Social Security retirement income cannot take advantage of this rule. The surviving partner will receive only his or her own individual benefit.

A married spouse who did not work at all can receive retirement benefits based on his or her spouse’s work record (at 50 percent) during that spouse’s lifetime, thus making the couple a two-income household at retirement. A lesbian or gay couple with one partner who did not work will have only one Social Security retirement income. Alternative financial products such as life insurance or annuities must be considered to provide a steady stream of added retirement income if a couple has income or earning disparity.

Similarly, upon the death of a spouse, Social Security disability benefits based on that spouse’s work record are available to a surviving spouse over the age of 50 years old but prior to retirement age. In contrast, one partner of a lesbian or gay couple cannot draw on the other partner’s work record for disability benefits. Particularly if one partner has limited lifetime earnings or none, it may be necessary to make plans for pre-retirement disability through added insurance.

Medicaid. Long-term care has become so expensive that many married couples with medium-sized estates end up relying on Medicaid assistance after long periods of care that drain resources. Medicaid is the federal/state matching program that covers many types of indigent medical services but, more importantly, covers long-term care costs (e.g., nursing homes) for individuals who mostly impoverish themselves paying for care. As nursing home costs nationally approach $10,000 per month and individuals live longer, reliance on Medicaid is common for at least one spouse or partner. Recognized married spouses have certain protections in federal Medicaid law when a spouse requires long-term care and applies for assistance.

Protections for a “community spouse” provide that he or she can keep liquid assets of about $100,000 in many states or a proportion of that amount in others (spousal asset allowance) while the ill spouse gets Medicaid benefits. Further, if the healthy spouse does not have sufficient income for his or her own support, he or she may keep a portion or all of the sick spouse’s income as well (spousal income allowance). There are also certain totally exempt assets if a spouse needs them; these include a house, vehicles, even income-producing rental property. These protections keep a married couple from becoming completely impoverished if one spouse needs Medicaid benefits.

Lesbian and gay couples are not viewed as married with respect to Medicaid benefits, and none of these protections are available to the well partner. Because long-time domestic partners likely own joint property and have combined finances, the well partner may be put at substantial risk. Not only are the protective Medicaid spousal allowances and property exemptions unavailable, but joint property is likely considered fully available to pay for the care for the sick partner or for payment of a Medicaid lien or claim after death. Attempts to transfer assets in advance or at the time of illness or long-term care will only make the situation worse by triggering gift transfer penalties under Medicaid rules. Although these rules may vary somewhat between states, new federal requirements penalize transfers made up to five years prior to application for Medicaid benefits.

If a lesbian or gay couple keeps somewhat separate finances, this can reduce the harm that may result from lack of Medicaid spousal protections. But it is highly unlikely that these couples, having developed a life, home, and family together, will be willing to separate all of their property and finances as they approach retirement because a lawyer warns of Medicaid pitfalls. Doing so may have problematic gift tax consequences (see below). However, until federal law recognizes their relationships, keeping some significant portion of their property separate must be considered in the event long-term care is needed.

Availability of long-term care insurance also may help offset this problem by providing a private payment source for care for some years in advance of applying for Medicaid. Lesbian and gay couples planning for retirement need to receive strong advice regarding why purchasing long-term care insurance is more important for them. Finally, when one partner needs long-term care, even with long-term care insurance in place, it is essential that an attorney familiar with Medicaid practice in their state of residence be immediately consulted regarding available asset protection strategies.

Retirement plan benefits. In August 2006 the federal Pension Protection Act added protections for retirement plans and accounts governed by federal retirement benefits law, allowing gay and lesbian domestic partners (in addition to certain other non-spouse family members) to receive and “roll over” certain retirement funds of a deceased partner. Prior to passage of the act, lesbian and gay couples who had a partner die prematurely may have suffered total loss of vested benefits in an employer plan or a substantial penalty for early lump-sum withdrawals from retirement accounts.

A surviving partner may now transfer a deceased partner’s retirement funds into an Individual Retirement Account and withdraw funds over either a five-year period or the surviving partner’s own life expectancy. This law also permits gay and lesbian couples to use retirement plan hardship rules (if they are offered) for early withdrawal without penalty for a qualifying medical or financial emergency, previously available only to spouses and dependents.

Because of the continued application of DOMA, the law provided only that plans governed by the Employee Retirement Income Security Act (ERISA) must provide a single life annuity available to single individuals and an inclusive roll-over option if offered. They need not provide the same distribution options available to recognized married spouses, which can include qualified joint and survivor annuity and qualified pre-retirement survivor annuity options.

Gift and estate tax. Because lesbian and gay couples lack the unlimited ability of federally recognized spouses to transfer property between one another, gift and estate tax planning for them becomes much more complex.

Specifically, the inability to make gift transfers between partners in excess of the annual exclusion amount (currently $12,000 per individual per year) may result in unanticipated treatment of mundane tasks. Management of standard daily finances, payment of debt obligations, or purchase of property may result in a reportable yearly gift between partners. Unlike recognized married spouses, lesbian and gay couples must consider if by unequal contribution to accounts with pooled funds they have made gifts to one another. If the partners have substantially different incomes but pay a mortgage from a joint account, the proportional contribution difference may result in a reportable gift in any given year. If one partner uses solely held funds for a down payment on property jointly titled, a reportable gift may result. If one partner receives domestic partner health or related benefits through the other partner’s employer, the total cost of the plan for the partner coverage, including both employer and employee contributions, may be considered additional taxable income to one partner and a gift to the other.

For couples with substantial estates, none of the standard estate planning tools that take advantage of two lifetime exemption amounts can be used. It may be more important to consciously use lifetime gifting to equalize estate values between the partners, to consider use of business entities to hold income or family business property, and to use insurance and charitable remainder trusts to fund or reduce estate tax burdens. Records of contribution to jointly held property must be kept to avoid inclusion of the whole value of the property in the estate of the first to die. Finally, some states that have decoupled inheritance tax systems from the federal rules may have adopted rate structures or classes of exemptions that may be detrimental to lesbian and gay couples. (For an excellent primer on estate planning for lesbian and gay couples, see Estate Planning for Same-Sex Couples by Joan M. Burda, ABA Books, 2004.)

The Patchwork of State Protections

Growing old with a lesbian or gay partner can be very different depending on where the couple lives and to what degree their state recognizes their relationship. In Massachusetts, lesbian and gay couples can be married following the Supreme Judicial Court decision in Goodridge v. Dept. of Public Health (440 Mass. 309 (2003)). The Supreme Court of California just recently provided the same state-level marriage rights to lesbian and gay couples, replacing the comprehensive California domestic partnership law in In Re Marriage Cases ((JCCP No. 4365) (2008)). The state of Oregon has a similar comprehensive statewide domestic partnership law that provides substantial benefits. The states of Vermont, Connecticut, New Jersey, and New Hampshire have all passed comprehensive civil union laws that provide substantial state level benefits.

Even in jurisdictions that have passed laws providing certain rights as a matter of fairness, aging lesbian and gay couples are at an extreme disadvantage when compared to federally recognized spouses. For example, the federal government, citing DOMA, has refused to provide matching Medicaid funds for benefits provided to gay and lesbian spouses in Massachusetts or to civil union partners in Vermont and elsewhere. Because they are providing equal benefits, allowances, and exemptions to lesbian and gay spouses/partners not federally recognized as “married,” each of those states has been required to create an alternative funding pool. Not only is this treatment more costly owing to the lack of federal matching funds, but the added cost of creating separate administrative and funding procedures is a waste of state dollars that would otherwise go for care and benefits to those who need them.

There are, however, a number of areas of state law that are available to review in most or many states and that should be part of any planning to protect a lesbian or gay couple growing old together.

Incapacity. Most states have some statutory procedure for appointing a fiduciary agent through durable power of attorney; many have adopted the uniform power of attorney law. Every lesbian and gay couple should have completed durable financial powers of attorney appointing each other as primary financial agent. This is often essential not only to provide authority for continued management of the couple’s finances in the event of incapacity, but also to provide standing to the partner in the event of a court proceeding for appointment of a guardian, conservator, or trustee. For aging lesbian and gay couples, there should be an express provision that allows gifts and transfers between the two for disability, for long-term care, and for estate planning.

The ability to appoint a health care agent or proxy is also available in most jurisdictions. Many states have passed the Uniform Health-Care Decisions Act, allowing for both appointment of a health care agent and for listing end-of-life (living will) choices. Aging lesbian and gay partners should appoint each other as their primary health care agent and clearly state that this person should be treated by physicians and health care providers as if he or she were a spouse. A provision indicating that a partner should be provided priority of visitation and the right to first speak with physicians and health care providers also should be included to establish that the partner has these rights over biological family or others, even if social conventions indicate otherwise.

Non-discrimination. Many states (20) and many more municipalities have non-discrimination laws that prohibit sexual-orientation discrimination in employment, housing, accommodations, credit, or education. These laws are different in each state. The most common problem affecting lesbian and gay couples growing older is discrimination in housing, accommodations, or credit. Aging couples in some areas may have difficulty renting an apartment, obtaining lodging, or applying for credit together with a local lender. If a partner who interacted with an apartment landlord is ill, the well partner may find difficulty in explaining their relationship. Out lesbian and gay couples may find that they are not accepted in their residential communities and may have difficulty with neighbors or municipal government offices.

Aging lesbian and gay partners may have difficulty in retirement living, long-term care, or nursing home placement in obtaining proper treatment as would be afforded to spouses. Owing to social stigma, many aging partners are concerned they will have to “go back in the closet” if they must enter a nursing home facility. They should be provided information about lesbian and gay retirement communities and long-term care facilities that are becoming available in many places where non-discrimination protections are strong.

Readers who live in more tolerant states may find these examples absurd, but lawyers have a duty in the context of planning for an aging couple to discuss the difficult issues that may arise, particularly to guarantee that forethought accompanies plans to retire to “the country,” a far away or unfamiliar location, or a new state, and that the couple is aware of the non-discrimination protections that may exist and be important to them and their plans.

Probate. Many jurisdictions now have some recognition and protection for non-traditional family members in probate, particularly states with domestic partner or civil union laws. The standard “next of kin” list of spouse and biological heirs that make up the list of interested persons and intestate heirs in those states may also include a lesbian or gay partner; the inclusion may or may not be at the same priority as a spouse and may require registration or validation of the domestic partnership. In the majority of states, however, the old standard of spouse and biological relatives remains for interested person status in probate court. It is very important that lesbian or gay partners create and sign an estate plan that places each other in the primary decision-making role.

A pattern of wills, revocable trusts, and power-of-attorney documents that may be updated from time to time can illustrate that a long-term relationship has existed. Keeping a record of changes to an estate plan, written instructions on disposition of remains, or lists of personal property may help settle disputes. If biological relatives are disinherited, a handwritten letter of explanation that could be admitted as a holographic will or supporting evidence might be called for. And most importantly, you must convince your aging lesbian or gay couple clients to include language expressly confirming and explaining their relationship in their will or other estate documents; a will is not the time for them (or you) to play coy or obfuscate about the nature of the relationship.

In the event a probate court proceeding on incapacity were ever needed, it is important that lesbian and gay partners nominate each other in writing for appointment as a guardian, conservator, or trustee. This usually can be done in a durable power of attorney or health care proxy, but it must be expressly indicated. Most probate courts will consider a nominee in writing for appointment over the usual list of probate interested parties.

Finally, some probate codes allow for appointment of an individual who has authority to make decisions about bodily remains at death or burial. Although the conversation may seem morbid, it is important that lesbian and gay clients include an appointment in writing of their partner for this purpose if allowed by state law.

Conclusion

Over time, one hopes, the acceptance of non-traditional couples will continue to increase and the major protections available for spouses in federal law will broaden to encompass lesbian and gay couples and provide consistency across the country. Pressure will grow as more aging lesbian and gay couples and individuals encounter just how vulnerable they are without these protections, and just how differently they may be treated depending on where they live. Understanding the context of basic legal issues important to aging lesbian and gay couples is only the starting place for properly assisting them, however. If you are interested in learning more about the unique history and social issues faced by lesbian and gay couples and elders, there are resources available that can assist you. See Lesbian, Gay, Bisexual and Transgender Aging, edited by Douglas Kimmel, Tara Rose, and Steven David (Columbia University Press, 2006). Information about the current state of the law that affects lesbian and gay couples can be obtained through local or state chapters of lesbian, gay, bisexual, and transgender (LGBT) advocacy organizations or Gay and Lesbian Advocates and Defenders ( www.glad.org), Lambda Legal ( www.lambdalegal.org), or Human Rights Campaign ( www.hrc.org). Finally, there is SAGE (Services and Advocacy for GLBT Elders) (www.sageusa.org), an amazing resource for lesbian and gay elders and a place to direct your clients to find non–legal resources.

Matthew R. Dubois is a small firm lawyer active in general practice, elder law, and lesbian, gay, bisexual, and transgender (LGBT) advocacy. He is chair of the Maine State Bar Association’s Elder Law Section and also board president of EqualityMaine ( www.equalitymaine.org), a statewide LGBT advocacy and education organization. He may be reached at mdubois@maine-elderlaw.com.